Measure Would Alter Federal Death Penalty System

Rep. John Carter (R-Tex.)
added the amendment to the USA Patriot Act's authorization bill that includes
the death penalty provisions.

House Legislation to Renew USA Patriot Act Would Loosen Some Provisions
for Execution

The House bill that would reauthorize the USA Patriot Act anti-terrorism
law includes several little-noticed provisions that would dramatically transform
the federal death penalty system, allowing smaller juries to decide on executions
and giving prosecutors the ability to try again if a jury deadlocks on sentencing.

The bill also triples the number of terrorism-related crimes eligible
for the death penalty, adding, among others, the material support law that has
been the core of the government's legal strategy against terrorism.

The death penalty provisions, which were added to the House bill during a voice
vote in July, are emerging as one of the major points of contention between
House and Senate negotiators as they begin work on a compromise bill to renew
expiring portions of the Patriot Act. If approved, the provisions could have
a significant impact on future Justice Department terrorism prosecutions.

The Senate version of the bill does not include the death penalty expansions.
Senate Democrats say that the proposals are extraneous to the Patriot Act and
should not be approved without fuller debate. Death penalty opponents and defense
lawyers also contend that the measures, by removing some of the safeguards now
in place, would increase the risk that innocent people could be executed.

"These are radical changes in the way federal death penalty cases are
litigated, and they were added virtually without any debate," said Jennifer
Daskal, U.S. program advocate for Human Rights Watch.

The Justice Department has endorsed the provisions and a spokesman for House
Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) said yesterday
that the proposals were viewed as relatively uncontroversial because they were
overwhelmingly approved on the House floor.

"I would expect that the House will forcefully advocate for those provisions,"
said Jeff Lungren, a spokesman for Sensenbrenner. "I would say its prospects
look fairly good."

A Republican staffer on the Senate Judiciary Committee said the death penalty
issue was "one of several concerns" about the House bill, which also
includes fewer restrictions on surveillance and search powers than the Senate
version.

The death penalty provisions were added as an amendment by Rep. John Carter
(R-Tex.), who had originally proposed the changes in a separate bill called
the Terrorist Death Penalty Enhancement Act. The same package was included in
a House intelligence reform bill last year but was stripped out during conference
negotiations with the Senate, officials said.

Carter spokeswoman Gretchen Hamel said the proposals are important because
"the congressman believes capital punishment is a deterrent for all kinds
of crimes, including terrorism."

Under the proposals, 41 crimes would be added to the 20 terrorism-related offenses
now eligible for the federal death penalty. Prosecutors would also find it easier
to impose a death sentence in cases in which the defendant did not have the
intent to kill.

In one example cited by Human Rights Watch, "an individual could be sentenced
to death for providing financial support to an organization whose members caused
the death of another, even if this individual did not know or in any way intend
that the members engage in acts of violence."

But critics are most concerned about procedural changes related to juries,
including a provision that would allow a trial with fewer than 12 jurors if
the court finds "good cause," with or without the agreement of the
defense.

The bill would also give prosecutors a chance to try again if a jury is deadlocked
over a death sentence. Currently, a hung jury at sentencing automatically results
in a life sentence, which mirrors the system used by mostof the 38 states that
currently allow the death penalty. Five states, including California, allow
prosecutors to empanel a new jury if the first one deadlocks.

In a statement to the House Judiciary Committee, Justice Department terrorism
chief Barry M. Sabin called the proposal "a major change in federal capital
punishment and procedure."

David Bruck, a death penalty expert at Washington and Lee University's law
school, noted that federal juries are already screened to remove opponents of
capital punishment.

"The chances are that if a jury disagrees the first time, they'll disagree
the next time and the next time, no matter how much time and how many millions
of dollars you waste on it," Bruck said. "If you can't get a unanimous
jury to decide that a particular case is one of the worst of the worst, that
tells you something."